Does yes really mean yes?

In America, argues Tessa Mayes, almost anything can be labelled a sex crime

A 37-year old man was charged with sexual assault and sexual contact by his landlady in New Jersey last year. One night she bought some beers, and alleged that the man ejaculated over her underwear when she was not able to give consent, because she was drunk. He alleges that she encouraged him to get drunk and be sexually intimate. There were, of course, no witnesses.

Under the 1997 amendment to the sexual assault and sexual contact statutes in New Jersey, a person can be convicted if 'the victim is one he or she knew or should have known was physically helpless, mentally defective or mentally incapacitated' (New Jersey statutes 2C: 14-2). The judge stated in court that American juries are now more likely to convict on this basis. Although intercourse was not proven, the man was imprisoned for eight months. Under laws introduced after the rape and murder of a young girl in New Jersey by a sex offender, popularly known as 'Megan's Laws', most US states require anybody convicted of a sex crime (not just rape or other physical assaults, but anything deemed to flout the loosely worded sexual contact laws) to register as a sex offender for the rest of their lives.

Originally the sexual assault and contact laws relating to a victim's mental state referred to gang rapes of mentally disabled people. Now they are being used to convict any individual where another non-mentally disabled individual feels they were unable to give consent. This means that the court will base its decisions, which can convict a man for up to 10-20 years if found guilty on this basis of sexual assault (less for sexual contact), purely on the subjective testimony of a victim. According to the man's attorney Stanton Peele, 'Under the old laws this situation would never be seen as a crime but as a drunken situation involving two consenting adults. If the logic of this case is followed through, in the future we could find that even when women consent by saying "yes" they could still plead that they were psychologically coerced in some way, and innocent perpetrators could be convicted as a result'.

No doubt plenty of women regret getting drunk with a man. Even in cases involving physical violence, at least there is some basis for introducing evidence involving violence and proof of non-consent. Yet for less violent crimes in ambiguous circumstances, it is easy to see how a woman's regret of getting pissed the night before can turn into a justification for labelling a man as a 'sex offender'. And while the woman can plead mental incapacitation (due to alcohol), the man cannot claim that he was too drunk to know whether she consented or not.

The courts seem to be increasingly willing to see adults as psychologically incapable of making decisions about their ability to consent to sexual acts. Yet at the same time, they seem to be investing children with the psychological maturity of adults, and punishing them accordingly.

An 11-year old boy was charged with incest under the Colorado state sexual contact laws on 21 October 1999. A neighbour observed the boy fondling his five-year old sister's genitals and reported it to the authorities. Now the boy faces a trial and up to two years in the juvenile justice system. The boy - who says all he did was help his sister take a pee - was presented to the court handcuffed and shackled as if he were a mentally deranged serial rapist.

What used to be called a game of 'doctors and nurses' between children is being redefined by US prosecutors as a violent crime. While adults are aware that certain sexual activities are socially unacceptable, this does not mean that children have the same understanding of what appear to be identical sexual behaviours. It is assumed that the boy (who was 10 at the time) must have been aware of the law on sex crimes and is being held responsible for his actions. Yet as Arnold Wegher, the boy's defence attorney, commented: 'I don't really believe my client understands what's going on.'

Some lawyers have condoned the decision by Colorado prosecutors, saying that the law can do much to identify children who need treatment by the state. As Howard Davidson, director of the American Bar Association's Center on Children and the Law, says, 'Courts need to take cases of alleged juvenile sex offenders very seriously, because this is the time when we probably do the most good in terms of treatment intervention'. It is hard to see how this boy will be helped through carrying the label of sex offender for life: would not a scolding from his mum or dad have been a more constructive 'treatment'? But the courts' contempt for the rights of parents is plain here. As the courts waded in at the first opportunity, the boys' parents were denied the chance to educate and discipline their own son.

Adopting a 'zero tolerance' attitude to sex crimes seems justifiable in the face of horrific and brutal sex attacks on defenceless people. But new laws justified on the basis of how a victim felt, whatever the age of the perpetrator or the proof against him, shows just how far justice is being jettisoned in the name of what looks like an endless war on sex crimes. Defendants are finding themselves behind bars because of somebody else's regret, revenge and upset. It's criminal, really.